Homeless Band Together To Sue Their City Over Law Against Sleeping In Public

Cindy Edlund and James Franklin Jr., homeless residents of Sarasota, Florida CREDIT: AP PHOTO/CHRIS O’MEARA
Cindy Edlund and James Franklin Jr., homeless residents of Sarasota, Florida CREDIT: AP PHOTO/CHRIS O’MEARA

In August, David Cross, a homeless resident of Sarasota, Florida, was sleeping outside a library. The only homeless shelter in the city was full. Yet he was woken up by a police officer, who told Cross he would give him a trespass warning anyway for violating the city’s ordinance that bans sleeping outside. Cross couldn’t have afforded a spot in that shelter, which charges a fee to sleep in it, even if there had there been a spot for him.

Now Cross and five other homeless people have teamed up with the American Civil Liberties Union (ACLU) of Florida to sue Sarasota, claiming the ordinance violates their constitutional rights.

Sarasota’s so-called lodging ordinance prohibits people from sleeping outside, although it requires police officers to first give people the opportunity to go to a shelter before being charged with a violation. Yet according to the lawsuit, the county doesn’t have any publicly funded shelters; the only shelter is a Salvation Army that is consistently at or over its capacity and puts down mats on the floor without sheets to take in more people. (Between January and September, it was at or above capacity for 88 percent of the nights.)

Even when the Salvation Army isn’t open, homeless people sleeping outside are charged. The shelter tends to fill up by 3 p.m., yet the homeless who are stuck outside at night are given citations. “It’s almost necessarily true that people who are being [given trespassing ordinances] really don’t have any other viable option,” said Andrea Mogensen, an attorney who worked with the ACLU on the lawsuit.


“The inference to be drawn is that these folks had no place else to go, yet were being prosecuted for sleeping, which is a normal and essential human activity,” added Adam Tebrugge, a staff attorney with the ACLU of Florida.

A Sarasota representative did not provide a comment on the lawsuit but pointed to comments made by the city attorney in a recent hearing.

Cross is joined by Shawn Davis and George Zellner, two other city residents who have no housing and had similar experiences with the police, as well as three others — Donald Gould, Paul Lonardo, and Joseph Vasta — who currently have places to sleep in transitional housing but have been arrested and prosecuted for violating the lodging ordinance in the past, although the lawyers expect more homeless people to join. They are claiming that enforcement of the ordinance violates the 8th Amendment, as punishing someone for the normal human need of sleeping constitutes cruel and unusual punishment.

The lawsuit says that the city has arrested and criminally prosecuted 882 people through the ordinance between 2013 and 2014. One particularly egregious incident involved Christopher Nelson, a homeless man who had been arrested six times for sleeping outside, who died from yellow jacket stings after hiding from police in a bush that had a colony. But it is also problematic even for those who suffer less severe consequences. Some have been arrested; others have been told to show up for a court appearance, but missing it could make them subject to arrest. And if the court orders them to pay a fine, they may not have the money for it. “I meet homeless citizens out on the street and they reach into their pockets and pull out a wad of court papers with various fines that they’re supposed to be paying,” Tebrugge said.

But homelessness in the city — and the city’s response of criminalizing it — has been a problem for the past decade. The population is growing: in the last count there were 1,365 homeless people without shelter in the county, more than 75 percent of them in the city itself, a more than 17 percent increase over the year before. But while a 2011 report the county submitted to the federal Department of Housing and Urban Development (HUD) identified building an emergency homeless shelter as a high priority for the next five years and made it a goal to come up with an alternative to criminalizing the homeless, that shelter still hasn’t come to fruition. For example, city lawmakers rejected several potential sites for it last year. And enforcement continues apace.


“Sarasota has decided to criminalize and prosecute homeless citizens rather than give them services,” Tebrugge said.

Many other cities have decided to use the same tactic. Over the last five years, there has been an increase in nearly every kind of anti-homeless ordinance across the country. But the tide may be turning against them. In August, the Department of Justice filed a memo in a case against an ordinance banning sleeping outside in Boise, Idaho saying that such laws are unconstitutional. That could help the ACLU in Sarasota. “We feel like this new statement of interest from the Department of Justice is a really important legal precedent that we didn’t have before,” Tebrugge said. Meanwhile, HUD recently announced that it may withhold federal funding from communities that respond to the homeless with criminalization.

Yet other cities across the state of Florida have taken the approach of criminalization, despite evidence from the state that it’s far cheaper to focus on housing the homeless. The hope is that if the lawsuit in Sarasota is successful, it could make change elsewhere. “If we were to get a favorable ruling, it might be something that could be useful around the state of Florida,” Tebrugge noted. “It could be a very good precedent.”

In fact, people in other jurisdictions have already reached out to him with complaints of their own. Sarasota’s lawsuit had been in the works for some time, so the others may not be ready to go yet. “But hopefully this will be a sort of template for other affected jurisdictions,” he said.